Brown v. Board is one of the most important decisions of the 20th century, but it rests on deeply confused logic.
While much of the government is closing down, the U.S. Supreme Court (Motto: “The Functional Branch of Government”) has convened for its October 2013 Term. This past Monday, there were eight new cert grants (Lyle Denniston has them here). Total snoozers unless you happen to be an IP lawyer (especially one with a keen interest in the latest spats between Judge Posner and the Federal Circuit).
That’s par for the course: upon re-convening, the justices motor through the stuff that’s accumulated over the summer, grant a few easy ones, and deny a ton (that’ll be this coming Monday’s mile-long Order List). The remaining petitions are automatically held over. Prediction: among the hold-overs will be the nine petitions seeking review of the D.C. Circuit’s masterful opinion(s) and decision in Coalition for Responsible Regulation, the GHG case discussed many times on this site.
I’ve looked over the grants to date (Scotusblog has them here) and found a few noteworthy things. For starters, there are fifty-two grants before the Chief has banged the gavel. This means that about two-thirds of this Term’s prospective grants have already been made—a torrid pace, and not good news for anyone else trying to get a foot in the door.
Of the grants, at least 30 are what the Supreme Court commentariat calls “Business Cases.” (The category is a bit unsharp; my count is conservative.) Subtract from the total (52) the usual smattering of criminal and habeas cases (9 to date): almost three-quarters of the Court’s civil docket is “Business” stuff. Slim pickings for Supreme Court reporters with a “God, guns and gays” portfolio.
The “Business Cases” run the gamut from A (Arbitration) and B (Bankruptcy) through P (Preemption) and T (Tax) to Y (Younger Abstention). What’s interesting (okay, interesting to me) is the paucity of straight-up statutory interpretation cases. A few have made it on the docket; they always do. (E.g., “What constitutes ‘changing clothes’ within the meaning of Section 203(o) of the FLSA?” is the pressing question in Sandifer v. U.S. Steel Corp., 12-417.) Overwhelmingly, however, the cases have a distinctly CivPro-ey, FedCourts-ish flavor. In addition to Younger abstention, there are two cases on the reach of personal jurisdiction; two cases about bankruptcy jurisdiction; cases about standing, fee awards, laches, finality for purposes of 28 U.S.C. 1291; etc. A lot of questions about what (federal) courts can and should do.
Dork stuff? Fer sure. But of considerable interest to business—and to the plaintiffs’ bar, which (another prediction) will again take it on the chin.